Undue encroachment

A particular press release by my colleague the Minister of Justice caught my attention. Not for obvious reasons but perhaps because of a hunch I have regarding the subtle motive behind it. The Justice Minister felt it opportune to bring out the issue of court experts.

Court experts are basically people proficient in various areas and who are regularly appointed mostly by the Magistrates' Court to assist in criminal investigations and in the compilation of evidence in criminal proceedings. Our Criminal Code, in fact, provides for the appointment of such experts in instances when the court requires advice on various matters usually of a technical mature.

Our court experts, therefore, hail from various spheres, which include doctors, architects, valuers and serologists, among many others.

The minister pointed out that the annual bill footed by the government in terms of court experts stood at about €800,000. He argued that this expense has become somewhat exorbitant and that, therefore, he would be planning immediate action in this sense.

I am four square behind any legitimate measure taken by the government in order to minimise expenditure, where possible.

In truth, there are occasions when the appointment of experts is capricious and there are other instances when the terms of reference given to such court officials are too generic and lead to unnecessary work and, thus, unnecessary expense.

In truth, however, when we consider the whole picture we will realise that the actual expense is quite acceptable.

This is especially so when one considers the overbearing expense the government entertains regarding its various retainerships, legal or otherwise, for itself and its agencies.

During the last legislature, I had the opportunity to table various parliamentary questions to all government ministers and parliamentary secretaries regarding the annual expense in this respect.

The result was quite astounding and the sum is far bigger than what which the state pays to court experts.

Then there is article 533 of the Criminal Code, which the minister thought fit to omit in his press release.

This article of law guarantees the refund of experts' fees by those found guilty at the end of the judicial process. Thus, what the minister failed to mention was the obvious fact that a substantial portion of the expense incurred by the government is recoverable.

Thus, my conclusion is that, all in all, what is paid out for expert advice given to the courts is not that alarming.

It must be further pointed out that the number of ongoing inquiries and criminal cases before the Magistrates' Courts run into thousands and, hence, the substantial amount of experts reports required.

In the past, it had been suggested by the government's side, even in Parliament itself, that it is high time that the minister concerned would be given the prerogative to dictate lists of people eligible for such nominations. I have always taken the opportunity to oppose this idea.

Our government seems to be very fond of decreeing lists as this is a form of empowerment. So now we have lists of lawyers who serve as legal aid; lists of professionals who can function as arbitrators; lists of other persons who serve as mediators and the lists go on and on.

However, when it comes to the question of the appointment of legal experts, this could be a form of interfering in the independence of the judiciary.

It is a fact that the members of the judiciary on a regular basis have to pronounce themselves on highly-sensitive issues that could have political overtures. In this respect, therefore, total transparency in judicial proceedings and the total independence of the presiding judicial officer is paramount.

Court experts are court officials and should owe allegiance only to the courts and to no other authority. Their role is part and parcel of the judicial process and, thus, their undisputed independence should also be apparent. Experts hold no public office and their office is by no means guaranteed by the Constitution.

Thus, if such officials are arbitrarily chosen by the minister and not by the courts they could well be subject to indirect pressure to play up to the government of the day.

It could be in their interest, and here one recalls the proverbial carrot, to succumb to undue political interference in order to perpetuate their tenure. To my mind this is totally unacceptable and would constitute undue interference by the Executive in the judicial process, seriously undermining the cardinal principle of the separation of powers as clearly defined by Montesquieu.

The more the Executive encroaches on the discretion of the courts, the less independent they would seem to appear and this would go a long way in undermining the people's already weakened trust in the judiciary.

Dr Herrera is a Labour member of Parliament.